Former Prime Minister Joseph Muscat has insisted through his lawyers that should Maria Efimova testify by video link in libel proceedings against slain journalist Daphne Caruana Galizia, the court should have proper control.
“We are not objecting to her admissibility. Rather, we want her to testify... But we want her to do so under control,” stressed Muscat’s lawyer Pawlu Lia when making submissions in the proceedings which continued against the journalist’s heirs.
Muscat filed the case against Caruana Galizia over a story published just months before her murder, alleging that the secret Panama company Egrant belonged to Muscat’s wife, Michelle.
Caruana Galizia had based her story largely on information she received from Efimova, a former Pilatus Bank official.
An inquiry by then magistrate Aaron Bugeja later concluded that Egrant was not owned by the former Prime Minister’s family and ordered criminal proceedings against Efimova for calumny.
Muscat also filed separate libel suits which are still pending against the victim's son, Matthew, over a Facebook post he had uploaded as well as against Karl Gouder and Mario Frendo, former NET TV editor and journalist respectively, over news reports concerning the Egrant saga.
Muscat insisted that the “Egrant lie” was an “attempted character assassination against his family which caused irreparable damage”.
As libel proceedings continue, Magistrate Victor George Axiak delivered a decree upholding a request by the defendants to summon Efimova as witness and to hear her testimony via video link.
Muscat lawyer challenges decree
But Muscat’s lawyer is challenging that decree, seeking court authorisation to appeal.
The point of contention is not whether to allow Efimova to testify but whether she ought to do so via video link.
The general rule in terms of article 577 of the Code of Organization and Civil Procedure states that “witnesses shall be examined in open court at the trial of the action and viva voce,” Lia said.
“The law must be interpreted ‘positively,’ in the sense that we must focus on what was legislated and published in parliament” and all other rules are subsidiary to that, argued Lia.
Testimony via video link was used during the COVID-19 pandemic and could also be utilised when the parties were in agreement.
However, in this case, the court did not have extra-territorial jurisdiction and difficulties were bound to arise since the court would not be able to control the witness in terms of law, he said.
For instance, when a witness was perceived as not telling the truth, a court may order that the witness be taken into custody.
“This woman stands charged with perjury and another court directed police authorities to take action against her,” the lawyer said, adding that Efimova had simply absconded after being granted bail.
“This witness does not have confidence in the Maltese juridical system and she wants to say what she may somewhere else, without any legal controls.”
Moreover, remote testimony was regulated in terms of an EU Directive and proper rules of procedure applied.
Yet “we don’t even know if this person is in the EU,” argued Lia, requesting authorisation to appeal the magistrate’s decision so as to “at least have a pronouncement by the superior courts.”
When testimony by a witness living abroad was deemed “indispensable,” proceedings were to be stayed in terms of article 613 of the Code of Organization and Civil Procedure, so as to allow time for that testimony to be obtained.
Defendants’ lawyer Joseph Zammit Maempel pointed out that that provision applied only before the superior courts.
He had come across several instances recently where witnesses working abroad testified via video link and no objection to that had been raised.
She refused to come here. There were 13 [prison inmate] deaths. She doesn’t want to be the next one to die at Corradino!
As for Efimova’s credibility, that was something for the court to assess and her testimony would then be given credit or discarded accordingly.
Magistrate Axiak was correct in allowing Efimova to testify via video link, argued Zammit Maempel, pointing out that a “foreign supreme court” had turned down a request by Maltese authorities to extradite the Pilatus whistleblower.
“She refused to come here. There were 13 [prison inmate] deaths. She doesn’t want to be the next one to die at Corradino!” the lawyer said.
The court will decree on the applicant’s request for leave to appeal.
The case continues in June.